' MUNIR A. SHEIKH, J.---This appeal by leave of the Court is directed against the judgment dated 30- 5-1993 of the Lahore High Court through which it was held that the petition filed by the appellants for execution of decree dated 20-12-1980 for specific performance of agreement of sale was not barred by time by operation of the principle of merger.
2. In the suit filed by the respondents on 11-1-1979 for specific performance of agreement of sale dated 28-1-1978, the trial Court passed decree against first set of the defendants under Order IX, Rule 6, C.P.C., against second set of defendants on account of admission in the pleadings and against the third set ex parte. It was directed that the remaining amount of price shall be deposited before the fixed date. Mst. Zahida Parveen, defendant No,11 against whom decree was passed ex parte made application for setting aside the same in which she obtained stay against the deposit of the remaining price on 11-1-1981. This application was, however, subsequently dismissed on 8-2- 1981 and date for deposit of the price was extended up to 10-5-1981. Two F.A.Os. Nos. 2 of 1981 and 40 of 1981 were filed for setting aside the decree dated 20-12-1980 to the extent of those defendants against whom the same was passed ex parte. These appeals were allowed and the case was remanded to the learned trial Court for fresh decision. The said defendants again did not put up appearance before the trial Court and an ex parte decree was passed against them on 29-6-1985.
Defendant No,1 Nizam Din against whom the decree had been passed on the basis of admission in the pleadings also assailed the order dated 8-2-1981 through C.R. No,200 of 1981 whereby the trial Court had extended the time for deposit of the price. This petition was rejected on 16-5-1987 and petition for leave to appeal filed by him was also dismissed by this Court on 11-3-1990.
3. The respondents-decree-holders thereafter on 28-3-1990 filed application for execution of the decree. The appellants filed objection petition contending that the execution application against the judgment and decree dated 29-6-1985 was barred by time. The objection petition was, however, rejected by the trial Court on 13-2-1991 which order was challenged through F.A.O. No,63 of 1991 before the Lahore High Court. The learned Single Judge of the said Court through the impugned judgment relying upon the judgment delivered by this Court in the case of Maulvi Abdul Qayyum v. Syed Ali Asghar Shah 1992 SCM R 241 held that the execution petition was not barred by law on account of the principle of merger, for this Court on 11-3-1990 finally decided the matter as regards extension of time for the deposit of the remaining consideration amount, therefore, from the said date, the same was within limitation.
4. Muhammad Farooq, appellant No,10 and Mst. Kabirun Nisa, appellant No,21 have appeared and argued the case. They stated that they did not want to engage a counsel. Their argument was that so far as those defendants against whom ex parte decree was passed after remand on 29-6-1985, the question whether execution petition was barred by time qua the said defendants should have been decided separately from those against whom decree was originally passed on 20-12-1980, therefore, the execution petition qua decree dated 29-6-1985 should have been held to be barred by time.
5. From the facts mentioned above, it is clear that there are two sets of decrees one passed on 20- 12-1980 in which time was fixed for deposit of the remaining amount of consideration. It was passed ex parte against one set of defendants, against the other set of defendants on the basis of admission and against the third set of defendants under Order IX, Rule 6, C.P.C. But since the date of decree was the same, therefore, time fixed in the said decree for deposit of the remaining amount of consideration was the same. It was extended on dismissal of the application of Mst.
Zahida Parveen, defendant No,11 seeking setting aside of ex parte decree which order was subject- matter of further revision and civil petition for leave to appeal before this Court which was ultimately decided on 11-3-1990. The question of merger of decree for the purpose of limitation for filing execution petition would prima facie be applicable in relation to the decree dated 20-12-1980.
However, ex parte decree passed on the same date against one set of defendants was set aside in the above-mentioned two FAOs and the case was remanded for fresh disposal against the said defendants and after remand, a fresh ex parte decree was passed against them on 29-6-1985.
Whether this decree was appealed against or not, there is nothing on the record. It is also not clear as to which of the decrees, i.e, the original decree passed on 20-12-1980 or the ex parte decree passed on 29-6-1985, was sought to be executed or both.
6. Considering that the decree dated 20-12-1980 in relation to which the principle of merger was found to be applicable on account of which execution petition seeking execution of the said decree was found to be within limitation is executable against the defendants other than those defendants against whom fresh ex parte decree was passed on 29-6-1985, for as observed above, the earlier ex parte decree dated 20-12-1980 passed against them had been set aside, further question to be determined by the Executing Court would be, whether the execution of decree dated 20-12-1980 to the exclusion of the defendants against whom decree dated 29-6-1985 was subsequently passed would be maintainable and the same is executable. Certain further questions were whether execution petition against the ex parte decree dated 29-6-1985 against those defendants against whom the same had been passed was within limitation, which would also he dependent on the determination of question whether any appeal or revision was filed against the said decree, as such, the principle of merger was applicable, for it is found that no appeal or revision had been filed and it had become final then the question of limitation of execution of the same against those defendants against whom the same had been passed will have to be decided according to law.
7. We, therefore, dispose of this appeal with the observation that the execution petition for the execution of decree dated 20-12-1980 was not barred by time on account of the principle of merger and direct the Executing Court to decide further questions as mentioned above about the executability of the said decree on the ground that the same is executable only against the defendants other than the defendants against whom decree dated 29-6-1985 was passed to the exclusion of the said defendants, as such, was executable and whether execution of application qua decree dated 29-6-1985 is within limitation in case the principle of merger is found to be not available.
8. There will, however, be no order as to costs.